LINDA C. SIMMONS v. EDWARD J. SIMMONS (01/27/86)

Appeal from the Order entered August 28, 1985 in the Court of Common Pleas of York County, Civil Division, at No. 499 S.A. 1975.

COUNSEL

Daniel L. Carn, York, for appellant.

Daniel W. Shoemaker, York, for appellee.

Wieand, Montemuro and Beck, JJ.

Author: Beck

[ 356 Pa. Super. Page 34]

In this appeal we are asked to determine whether either a levy or a sale of a judgment debtor's personalty pursuant to a writ of execution satisfies the judgment for which the writ was issued when the amount realized through the execution process by the judgment/execution creditor is less than the full sum of the judgment sought to be enforced by the writ of execution. We hold that under such factual circumstances, the judgment is not satisfied but is discharged only to the extent of the proceeds actually obtained by the judgment/execution creditor.

Appellee-wife Linda Simmons acquired against appellant-husband Edward Simmons a judgment for $3024.60 representing child support arrearages. To enforce the judgment, wife obtained the issuance of a writ of execution which directed the sheriff of York County to seize certain items of husband's personal property. The sheriff accordingly seized husband's specified personalty which was subsequently sold at a sheriff's sale. At the sale, wife purchased husband's pop-up camper and Bronco II vehicle for $89.34, the sheriff's costs in the execution procedure.

As a result of the sheriff's sale, wife obtained the camper and Bronco II subject to the claims of the credit company which had lent husband the purchase money for those items and, apparently, had a security interest in them. After the sheriff's sale, the camper and Bronco II were taken by the credit company in payment of the balance of the purchase money loans made to husband. Due to the sheriff's sale of the camper and Bronco II to wife, husband requested that wife have the judgment against him marked satisfied. Wife refused to do so.

The parties' dispute concerning the entry of satisfaction of the judgment was submitted to the Court of Common Pleas of York County which after a hearing on the matter, decided that since wife did not realize any gain from her purchase of the camper and Bronco II, husband was not entitled to have the judgment against him marked satisfied.

[ 356 Pa. Super. Page 35]

From the court order denying his request for entry of satisfaction, husband now appeals.

Under the Pennsylvania Rules of Civil Procedure, a judgment for support arrearages is enforceable by execution upon the judgment. Pa.R.C.P. Nos. 1910.20, 1910.23. To initiate the execution process, the judgment creditor files a praecipe for a writ of execution with the prothonotary of the county where the judgment for support arrearages has been entered. Pa.R.C.P. No. 3103. The prothonotary then issues a writ of execution which contains a notice to the judgment debtor and instructions to the county sheriff concerning the execution. Pa.R.C.P. No. 3252. The notice advises the judgment debtor that his property may be taken through the execution process in an attempt to have the judgment against him satisfied. In addition, the notice explains that some of the judgment debtor's property may be exempt from seizure. Pa.R.C.P. Nos. 3123, 3123.1, 3252; but see 42 Pa.C.S.A. § 8123(b) relating particularly to property exemptions in the context of judgments for support. Finally, the notice informs the judgment debtor that he has a right to present a legal defense to prevent the seizure of his property. Pa.R.C.P. Nos. 3119, 3121, 3123, 3123.1, 3252.

The instructions to the sheriff direct the sheriff to levy upon the judgment debtor's property specified in the writ and to sell the judgment debtor's interest therein. Pa.R.C.P. Nos. 3107, 3108, 3109, 3124, 3252. In the context of an execution upon a judgment, a levy consists of a sheriff's actual or constructive seizure of the judgment debtor's property. Duncan's Appeal, 37 Pa. 500 (1860); Welsh v. Bell, 32 Pa. 12 (1858); see also Carey v. Bright, 58 Pa. 70 (1868); Mills v. Jacobs, 131 Pa. Super. 469, 200 A. 233 (1938). "The levy is an assertion of title by the sheriff, amounting at least to a legal divestiture of the possession of the ...

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